Important Remarks on the Interpretation of Treaties

(1.) The Treaty of Peace between the ROC and Japan of 1952 stipulates in Article 4 that "all treaties, conventions and agreements concluded before December 9, 1941, between Japan and China have become null and void as a consequence of the war". Japan acknowledged that the treaties, agreements and so on between Japan and China as indicated in the Article above mentioned were including all of those concluded between Japan and the Qing Dynasty. Note: Although scholars of Chinese history claim that China was first united under the Qin Dynasty, it is important to note that the maps of early dynasties such as the Qin (221 - 207 BC), the Han (206 BC - 220 AD), the Three Kingdoms (220 -280), etc. do not include Taiwan. Taiwan does not appear on Chinese maps until the latter years of the Qing Dynasty (1644 -1911), and then it was ceded to Japan in 1895.

However, clauses regarding territorial cession, reparation provisions, etc. are not affected by a war or by subsequent cancellation of a treaty. This is because once the obligations of territorial cession, reparation provision, etc. have been fulfilled, the relevant clauses in the treaty itself are no longer active. In other words, the cancellation of a treaty only affects those provisions which have not yet been fulfilled in their entirety. Thus the specifications of the 1895 Treaty of Shimonoseki which ceded Taiwan to Japan are in no way subject to "retroactive cancellation." Note: The 1895 Treaty was ratified by the Qing Emperor. Under international law, territorial cession in a peace treaty is considered a valid method for transferring the title of an area.

(2.) Furthermore, upon the coming into force of the 1895 Treaty, all previous claims of China regarding the ownership of Taiwan and the Pescadores, whether due to history, culture, language, race, geography, geology, etc. became null and void.

(3.) The SFPT recognizes the independence of Korea. The benefits which China received from the SFPT are specifically outlined in Article 21. The Sino-Japanese Peace Treaty is a subsidiary treaty under the SFPT, as authorized by Article 26. Hence, China is very much affected by the SFPT. The often heard reasoning of some Chinese scholars toward the SFPT of "We didn't sign it, so we are not affected by it" is illogical when viewed in this light.

(4.) In the SFPT, Japan ceded Taiwan, however no "receiving country" for the cession was specified. Article 2 of the Sino-Japanese peace treaty, effective August 5, 1952, merely quoted this SFPT provision. However, some scholars still maintain that the Sino-Japanese peace treaty, between Japan and the ROC, must be interpreted as transferring the sovereignty of Taiwan to the ROC, since one party "ceded," so of course the other party "received." However, this analysis is erroneous because Japan was not holding the sovereignty of Taiwan after April 28, 1952.

(5.) Curiously, it is often heard from Chinese or Taiwanese researchers that "The Chinese were in Taiwan when the treaty came into effect, so of course Taiwan belongs to us," or "Since no receiving country was specified in the SFPT, of course the sovereignty of Taiwan is distributed among the local Taiwanese populace" or "Since no receiving country was specified in the SFPT, of course the sovereignty of Taiwan reverts to China." Note: Richard W. Hartzell has lived in Taiwan for nearly thirty years, and has seen these types of mutually contradictory rationale reported in the local Taiwanese media for decades.

After lengthy research, no precedents in the post-Napoleonic world have been found which would give credence to any contentions that sovereignty can be transferred according to such rationale.

-- excerpted from the Harvard Asia Quarterly, Fall 2004 edition

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